County of Cook v. Kempe

560 N.E.2d 1152, 203 Ill. App. 3d 225, 148 Ill. Dec. 555, 1990 Ill. App. LEXIS 1412
CourtAppellate Court of Illinois
DecidedSeptember 17, 1990
Docket1-88-1483
StatusPublished
Cited by4 cases

This text of 560 N.E.2d 1152 (County of Cook v. Kempe) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
County of Cook v. Kempe, 560 N.E.2d 1152, 203 Ill. App. 3d 225, 148 Ill. Dec. 555, 1990 Ill. App. LEXIS 1412 (Ill. Ct. App. 1990).

Opinion

JUSTICE MANNING

delivered the opinion of the court:

The sole issue presented for review on this appeal is whether the •trial court erred in ordering the petitioner, the County of Cook, to pay the fees of the court-appointed guardian ad litem.

On November 29, 1987, Maria Stoica was hit and injured by an automobile while crossing the street and taken to Edgewater Hospital for treatment. She was later transferred to Cook County Hospital on December 5, 1987, where doctors recommended X rays and possible surgery for her fractured hip. However, Ms. Stoica would not consent to surgery at Cook County Hospital and indicated that she wanted to leave the facility although she had no plans for obtaining adequate medical care elsewhere.

On December 22, 1987, the County of Cook, through Virginia Wearring, the director of social services of Cook County Hospital, filed a plenary petition for temporary guardianship, pursuant to section 11a — 1 et seq. of the Probate Act of 1975, as amended (hereafter Act) (Ill. Rev. Stat. 1985, ch. 110½, par. 11a — 1 et seq.), seeking the appointment of the office of the State Guardian as guardian for the person of Ms. Stoica. The trial court assigned Enid L. Kempe as guardian ad litem (hereafter GAL) or the respondent Maria Stoica.

During the hearing on the temporary guardianship petition which was held on December 24, 1987, the GAL orally reported her findings to the court. As a result of the GAL’s oral report and the written reports of two physicians, the trial court entered an order that appointed the office of the State Guardian as temporary guardian to consent to X rays of Ms. Stoica’s hip and leg area. The GAL’s written report was filed on January 7,1988.

Thereafter, on February 19, 1988, the court granted petitioner’s request to withdraw the petition for guardianship because Ms. Stoica had been discharged from Cook County Hospital on December 31, 1987, and the hospital had no contact with her for follow-up care since that date. The court further ordered the petitioner to pay the costs of the GAL.

On March 11, 1988, the petitioner filed a motion to reconsider and vacate that portion of the February 19 order which required the petitioner to pay the fees and costs of the GAL. The basis of petitioner’s motion was that section 11a — 10(c) of the Act (Ill. Rev. Stat. 1985, ch. 110½, par. 11a — 10(c)) precluded recovery of the GAL’s fees and costs from the petitioner but allowed recovery only from the respondent or the State.

On March 18, 1988, the court vacated that portion of the order of February 19, 1988, which required the petitioner to pay the GAL’s fees and scheduled a hearing for March 31, 1988, as to the respondent’s ability to pay those fees. On March 31, 1988, only the petitioner and the GAL appeared before the court for the hearing on the respondent’s ability to pay the fees. Ms. Stoica did not appear. The trial judge stated that since it is “the petitioner’s burden to show that the respondent has funds” to pay the GAL and because there is “no evidence that the respondent does have funds, [he could] hardly direct her [Ms. Stoica] to pay you [GAL].” The judge found that the petitioner was required to pay the fees. The petitioner argued that it was the State’s responsibility to pay the fees if the respondent was unable to do so. In response the judge commented that the legislature had failed to fund the account for payment of such fees and ordered the petitioner to pay the fees of the GAL in the amount of $357.50. He also directed the GAL to sign any necessary papers to allow the petitioner to seek reimbursement from the State.

On April 8, 1988, the petitioner filed a motion to reconsider and vacate the order of March 31, 1988, which the trial court denied on April 22,1988. Thereafter, petitioner filed a timely notice of appeal.

The petitioner argues that the trial court erroneously ordered it to pay the fees of the GAL since payment of such fees is governed by section 11a — 10(c) of the Act, which provides for payment by the respondent or State only. The GAL argues that the trial court properly determined that the petitioner was required to pay the GAL’s fees on the grounds either that: (1) the court has inherent power to compensate a GAL and apportion the fee between the parties as equity requires; (2) the court can order compensation as an element of costs and tax the costs to the losing party; or (3) section 11a — 10(c) provides a cumulative rather than exclusive remedy for a GAL to be compensated. Alternatively, the GAL contends that by application of the doctrine of desuetude, section 11a — 10(c) has lost its force of law and is inapplicable here since the legislature has failed to fund the account contemplated under the statute.

The pivotal issue in this case is not whether a court-appointed guardian ad litem who represents a disabled adult is entitled to be paid fees, but rather who should pay those fees. The Act pertaining to guardians for disabled adults provides in relevant part:

“The court shall appoint a guardian ad litem to represent the respondent, except that the appointment of a guardian ad litem shall not be required when the court determines that such appointment is not necessary for the protection of the respondent or a reasonably informed decision on the petition. The court may allow the guardian ad litem reasonable compensation. *** * * *
If the respondent is unable to pay the fee of the guardian ad litem or appointed counsel, or both, the court shall enter an order upon the State to pay from funds appropriated by the General Assembly for that purpose, all such fees or such amounts as the respondent is unable to pay.” Ill. Rev. Stat. 1985, ch. 110½ pars. 11a — 10(a), (c).

The petitioner contends that taxation of the costs of the guardian ad litem fees to it is contrary to the statutory mandate, and thus, violative of the rules of statutory interpretation as set forth in the third district case of In re Prior (1983), 116 Ill. App. 3d 666, 452 N.E.2d 676. In Prior, this court recognized that allowance and recovery of costs, being unknown at common law, rest entirely upon statutory provisions which must be strictly construed. (Prior, 116 Ill. App. 3d at 668; see also People v. Nicholls (1978), 71 Ill. 2d 166, 173, 374 N.E.2d 194.) The court held that since guardian ad litem fees were to be paid in the “due course of administration” (Ill. Rev. Stat. 1985, ch. 110½, par. 27 — 4), but there being no administration therein, the statute, strictly construed, did not provide for the payment of guardian ad litem fees prior to the administration of the respondent’s estate. Prior, 116 Ill. App. 3d at 669.

Preliminarily, we address the GAL’s contentions that the trial court has inherent power to apportion the fees between the parties or tax such fees as cost to the losing party whom it asserts is the petitioner in this matter. We disagree with both of these arguments because the factual matrix here presented is governed by the provisions of the Act. Where, as here, the governing principle of law is grounded in a statute which is unambiguous, the trial court must hold the statute to mean what it plainly expresses.

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Cite This Page — Counsel Stack

Bluebook (online)
560 N.E.2d 1152, 203 Ill. App. 3d 225, 148 Ill. Dec. 555, 1990 Ill. App. LEXIS 1412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/county-of-cook-v-kempe-illappct-1990.